United States v. Swann ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4922
THOMAS EUGENE SWANN, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-97-128)
Submitted: May 29, 1998
Decided: June 30, 1998
Before MURNAGHAN and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Donald D. Hecht, LESLIE L. GLADSTONE, P.A., Baltimore, Mary-
land, for Appellant. Lynne A. Battaglia, United States Attorney, Har-
vey Ellis Eisenberg, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Thomas Swann appeals his convictions for aiding and abetting
armed bank robbery in violation of 18 U.S.C. §§ 2, 2113(a), (d), (f)
(1994), and the carrying of a firearm while committing a crime of vio-
lence in violation of 18 U.S.C. §§ 2, 924(c) (1994). Finding no merit
to his claims, we affirm.
Swann first asserts that the government failed to present sufficient
evidence that the bank he was accused of robbing was a federally
insured institution at the time of the robbery, as required for a convic-
tion under 18 U.S.C. § 2113(f) (1994). See United States v. Gallop,
838 F.2d 105, 111 (4th Cir. 1988) (noting that proof of federal insur-
ance is both an element of the crime and a prerequisite to federal
jurisdiction). At trial, the government introduced into evidence a cer-
tificate from 1991 showing that the bank was a federally insured insti-
tution. The certificate had no expiration date, and a bank employee
testified that the certificate "states that we are insured by the Federal
Deposit Insurance Corporation." (JA 30). Swann did not cross-
examine the teller about the certificate.
This Court reviews challenges to the sufficiency of evidence to
determine whether, taking all the evidence in the light most favorable
to the prosecution, a reasonable jury could find the defendant guilty
beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319
(1979). Viewing the evidence in a light most favorable to the prosecu-
tion, we find that there was sufficient evidence for a reasonable jury
to find that the bank was a federally insured institution at the time of
the robbery. The quantum of evidence in this case exceeds that in
United States v. Platenburg, 657 F.2d 797 (5th Cir. 1981), upon
which Swann relies.
Swann next claims that the district court erred in not requiring the
government to turn over a police file from an unrelated crime alleg-
2
edly committed by a government witness, Tammy McGinnis. Prior to
Swann's trial McGinnis confessed that she and Swann committed the
robbery for which Swann was ultimately convicted. On direct exami-
nation McGinnis admitted that she had attempted to rob a Food Lion
store in Selbyville, Delaware. She further admitted that she had lied
in her videotaped confession when she denied committing that
attempted robbery. Before cross-examining McGinnis, Swann
informed the court that he had been unable to obtain a copy of the
police file from the Food Lion attempted robbery and requested that
the court order the government to turn over its copy of the file. After
reviewing the file in camera, the court determined that nothing in the
file was "remotely probative or relevant or would have been useful in
cross-examination," and refused to order the government to turn over
the file. (JA 172-73).
On appeal, Swann contends that the district court erred in not
requiring the government to turn over the police file under Federal
Rule of Evidence 608(b), which permits inquiry on cross-examination
into prior instances of conduct relating to truthfulness or untruthful-
ness in order to attack a witness' credibility. See Fed. R. Evid. 608(b).
He argues that his inability to obtain the report precluded him from
adequately cross-examining McGinnis about the Food Lion robbery,
and that such cross-examination could have bolstered his attack on
McGinnis' credibility.
This court reviews a district court's regulation of discovery matters
and evidentiary rulings for an abuse of discretion. See United States
v. Muse, 83 F.3d 674, 675 (4th Cir. 1996) (discovery); United States
v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993) (evidentiary rulings).
Swann does not allege a discovery violation or that the government
had any obligation to turn over the report under Brady v. Maryland,
373 U.S. 83 (1963), or Giglio v. United States , 405 U.S. 150 (1972).
Even if the government had some obligation to allow Swann to
inspect the police report, the strictures of Rule 608 coupled with the
district court's finding that the report contained no relevant informa-
tion that Swann could have used to impeach McGinnis render his
claim completely without merit. The district court acted in full accor-
dance with Rule 608(b) in allowing Swann to attack McGinnis' verac-
ity by cross-examining her about the Food Lion robbery and the
dishonest statements she made in her videotaped confession. Rule
3
608(b) requires no more. Swann offers no legal authority suggesting
that the district court committed error in not requiring the government
to allow him to inspect the police report, and his attempt to cloak a
baseless discovery claim as an evidentiary claim is unpersuasive.
Swann's final claim is that the district court erred in refusing to
instruct the jury that the use of or possession of money after a robbery
is insufficient to prove aiding and abetting. Swann asserts that he was
entitled to such an instruction because McGinnis' testimony was the
only evidence that placed him at the bank during the robbery, and
thus the jury could have mistakenly found him guilty of aiding and
abetting based solely on the evidence that police found stolen money
in his possession after the robbery.
The district court's decision not to give an instruction is reviewed
for an abuse of discretion. United States v. Russell, 971 F.2d 1098,
1107 (4th Cir. 1992). A court's refusal to provide an instruction
requested by a defendant constitutes reversible error only if the
instruction: (1) was correct; (2) was not substantially covered by the
court's charge to the jury; and (3) dealt with some point in the trial
so important, that failure to give the instruction seriously impaired the
defendant's ability to conduct his defense. United States v. Lewis, 53
F.3d 29, 32-33 (4th Cir. 1995). Having reviewed the record, we find
that the district court's instructions to the jury explained that it should
not find Swann guilty of aiding and abetting based solely on his pos-
session of stolen money after the robbery. Because the instruction
given adequately covered Swann's requested instruction and enabled
him to argue his defense theory to the jury, the district court acted
within its discretion in refusing to give the requested instruction.
Accordingly, we affirm Swann's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
4